S. 5238 — For Our Republic Act

This section requires noncitizen children to remain physically together with their parent, legal guardian, or nonparent family member while in the custody of the Department of Homeland Security or the Department of Health and Human Services, except when the child requests temporary privacy, clear and convincing evidence shows an imminent national security threat or specified criminal inadmissibility, or a child welfare expert documents likely serious emotional or physical harm. It bars DHS employees from conducting the required screenings or determinations, mandates prompt reunification once risks are mitigated, requires notification of rights to challenge separations in federal court, and directs HHS to hire licensed child welfare experts trained in trauma-informed care and proficient in Spanish or one of the top five languages spoken by noncitizen children in the past five years.

This section replaces the term “unaccompanied alien child” with “unaccompanied noncitizen child” throughout the statute. It eliminates the special expedited return process for children from contiguous countries. It limits U.S. Customs and Border Protection custody of any noncitizen child to 72 hours and requires the agency to operate reception centers within 100 miles of each southern border port of entry and Border Patrol station for expedited sponsor evaluations by HHS case managers. It requires licensed child caregiver professionals—available 24 hours a day, seven days a week, with mixed-gender staffing—at land ports of entry, southern border stations, and CBP facilities, and directs them to oversee food, hygiene, supervision, and referrals. It requires the release of children apprehended with a parent, adoptive parent, legal guardian, or qualifying nonparent family member, together with support from qualified community organizations. It prohibits the Federal Government from operating any family detention facility.

This section grants the Director of U.S. Citizenship and Immigration Services jurisdiction over asylum applications filed by individuals classified as unaccompanied noncitizen children, regardless of age or marital status at filing; by individuals apprehended as children with a parent, adoptive parent, or legal guardian, regardless of age or marital status at filing; and by the parents or legal guardians of such individuals.

This section limits U.S. Customs and Border Protection detention of noncitizen children to initial processing only. It prohibits detention of any family with a noncitizen child for more than 72 hours and requires the Commissioner to prioritize the best interests of the child and family unity in all detention decisions.

This section requires U.S. Customs and Border Protection facilities housing noncitizen children to comply with new standards for safety, sanitation, and child-appropriate conditions. It mandates HHS employee access within 90 days for medical and mental health screenings, hygiene, food, reunification of unaccompanied children, and family relationship verification at facilities detaining individuals longer than 72 hours. It directs a review of the 2015 National Standards on Transport, Escort, Detention, and Search within 180 days, revision within 90 days after the review, and full facility compliance within 180 days after revision. It further requires dedicated children's areas with child-sized furniture, toys, bathrooms, diapering stations, nursing chairs, outdoor recreation, and staffing by licensed child care, pediatric health, and child welfare professionals, plus medical screenings by licensed providers within 6 hours of arrival and unrestricted access to medication and assistive devices.

This section limits the term "asylum officer" to employees of the Refugee, Asylum, and International Operations Directorate of U.S. Citizenship and Immigration Services. (Thus, U.S. Customs and Border Protection officers are excluded from performing asylum officer functions under the expedited removal screening process.)

This section expresses the sense of Congress that the Secretary and the Director should explore all other avenues for placing an unaccompanied noncitizen child in the least restrictive, State-licensed setting that most approximates a family before opening or expanding an influx facility.

This section defines "emergency" as an event of limited duration, such as a natural disaster, facility fire, civil disturbance, or medical concern. It defines "operational capacity" as the net bed capacity of Office of Refugee Resettlement facilities and other housing operated by State-licensed programs for unaccompanied noncitizen children.

This section limits housing of unaccompanied noncitizen children in influx or emergency facilities to no more than 20 days. It requires transfer to a licensed childcare facility if release to a sponsor is not possible within that period, unless the transfer would extend total custody by more than 48 hours. It bars transfers to influx facilities for children younger than 16 years of age, those with special needs, pregnant or parenting children, those on psychotropic medication, non-English or non-Spanish primary speakers, and 13 other specified categories. It requires family groups of siblings or relatives under age 18 to remain together with unlimited visitation.

This section directs the Director to develop within 180 days a plan to maintain and expand emergency capacity in licensed foster care homes and small congregate care facilities to eliminate influx facilities, and to place unaccompanied noncitizen children with sponsors as quickly as possible during emergencies or influxes. It requires a supplemental placement list of at least 200 beds in State-licensed facilities, with specified contact and service details, and mandates contacting those facilities when operational capacity reaches or exceeds 75 percent for three consecutive days, plus locating additional placements and expediting reunification from Customs and Border Protection custody when the list is insufficient.

This section requires influx facilities for unaccompanied noncitizen children to meet all childcare facility standards on the first day of operation, including staffing ratios, case management, education, medical and mental health services, and Prison Rape Elimination Act requirements, and to achieve full part II and state licensing compliance within 30 days. It bars contracts with entities lacking demonstrated experience, placement plans, infectious disease protocols, background checks prohibiting hires with child abuse or trafficking convictions, and other specified safeguards, while authorizing the Director to waive standards for up to 30 days and requiring congressional notice for licensing waivers.

This section requires the Director to conduct monthly comprehensive onsite monitoring visits to influx facilities, including evaluations of compliance with standards under part II and the Prison Rape Elimination Act of 2003, assessments of health care and legal services access, and private interviews with unaccompanied noncitizen children. It authorizes unscheduled visits by the HHS Inspector General, requires monthly visits by the Ombudsperson to monitor compliance with the Flores settlement agreement and other laws, and mandates monthly tours by approved stakeholders.

This section requires each unaccompanied noncitizen child to receive a free legal orientation presentation and screening within 10 days after transfer to the Secretary's custody. The presentation must cover the right to apply for relief from removal, the right to request voluntary departure, and the right to a hearing before an immigration judge, with affirmative efforts to complete both before release but without delaying sponsor placement solely for that reason.

This section requires the Secretary of Health and Human Services to provide government-funded legal counsel to each unaccompanied noncitizen child in custody, extending through all stages of removal proceedings and ancillary matters such as employment authorization, placement review, and sponsorship hearings, even after the child turns 18 or reunifies with a parent. It mandates private meeting space and telephone access, permits contact with counsel at any time, authorizes appropriations kept separate from childcare facility funds, and directs the Office of Refugee Resettlement to give counsel prompt access to case managers and complete case files within 7 days of a request.

This section requires the Secretary to appoint independent child advocates for every vulnerable unaccompanied noncitizen child in or released from custody. It expands services to all locations housing such children or where they appear in immigration courts within 180 days, prioritizing highest-volume sites, and grants advocates timely access to complete ORR case files within 72 hours. Advocates must submit best-interest recommendations to HHS, DOJ, DHS, and Federal, State, or Tribal courts; all communications remain confidential; and each service location must include attorneys expert in immigration and child welfare law.

This section increases the number of immigration judges by at least 75 during fiscal year 2025, requires each to have substantial immigration law experience and due process training, and bars any hiring preference for prior federal service. It also increases judicial law clerks by 75 and support staff by 300 at the Executive Office for Immigration Review in fiscal year 2025. The section requires immigration judges to administratively close or terminate removal cases, and the Board of Immigration Appeals to remand cases for closure, when an individual appears prima facie eligible for a visa or other immigration benefit with a pending application. It prohibits use of funds for numeric case load performance standards that could impair fair adjudication and authorizes appropriations for these purposes.

This section establishes within the Department of Health and Human Services an Office of the Ombudsperson for Unaccompanied Noncitizen Children to monitor and oversee compliance with the subtitle and amendments. The Office operates as an impartial, confidential entity independent of the Office of Refugee Resettlement and the Department of Homeland Security; it is headed by an Ombudsperson appointed by the Secretary for terms of up to 4 years who must establish at least 7 regional offices in specified locations, hire subject-matter experts, conduct site visits, and investigate claims of abuse or neglect within 30 days.

This section requires the Secretary of Homeland Security to collect and maintain weekly records on each noncitizen child in custody, including biographical information, apprehension and release dates, family details, and aggregated statistics on facility populations, peak numbers, and median custody hours, and to submit the data to the Ombudsperson and congressional committees while publishing aggregated figures monthly on a public website. It also directs the Director of the Office of Refugee Resettlement to establish and maintain a data collection system for unaccompanied noncitizen children, with weekly updates from facilities on individual case details and facility operations, triennial system reviews, and continuity of comparative data.

This section requires annual audits of each childcare facility for unaccompanied noncitizen children, including site visits to verify compliance and state licensing, with reports to the Ombudsperson within 7 days. It establishes violation notifications, administrative appeals (during which no new placements are permitted), and debarment from federal contracts for at least 3 years. It authorizes civil actions in federal district court for noncompliance, limits review to individual claims, imposes civil penalties of up to $2,500 for interference with the Ombudsperson, and makes discrimination or retaliation a misdemeanor.

This section prohibits the Director from taking adverse actions against or withdrawing funds from Office of Refugee Resettlement-funded legal services providers and child advocate programs for pursuing judicial review or civil actions on behalf of unaccompanied noncitizen children or their parents, legal guardians, or prospective sponsors. It also bars retaliation against agency employees, contractors, care providers, and noncitizen children in immigration custody for filing complaints with the Ombudsperson or reporting discrimination.

This section requires the Secretary of Homeland Security or the Secretary of Health and Human Services to allow Members of Congress to tour any facility housing detained individuals, including unaccompanied noncitizen children, between 8:00 a.m. and 7:00 p.m. upon written notice of at least 24 hours for DHS facilities or 2 business days for HHS facilities. It permits up to 5 Members (for facilities with 50 or fewer children) or 10 Members (for larger facilities) to be accompanied by members of the press, subject to limits on cameras and release of personally identifying information.

This section requires noncitizen children in immigration custody to receive fair and equal treatment with inclusive, safe, and nondiscriminatory services. It prohibits discrimination and harassment based on race, ethnic group identification, ancestry, national origin, color, religion, sex (including sexual orientation, gender identity, and expression), language, mental or physical disability, or HIV status, and directs that services be delivered in a manner sensitive to each child's age, culture, native language, and complex needs.

This section requires care providers of noncitizen children in immigration custody to ensure fair, dignified, and nondiscriminatory treatment in an inclusive environment. It directs active efforts to preserve cultural connections for indigenous children and mandates privacy protections, correct name and pronoun usage, and gender-identity-based housing, restroom, and search accommodations for LGBTQI children while prohibiting isolation, segregation, or punishment based on sexual orientation or gender identity.

This section requires the Director to maintain unaccompanied noncitizen children's personal information and Office of Refugee Resettlement case files and records separately from their immigration files (A-Files) and to ensure that the Department of Homeland Security cannot access those records.

This section prohibits the Secretary of Homeland Security and the Attorney General from using an unaccompanied noncitizen child's Office of Refugee Resettlement case file or record to deny any application for relief or to facilitate involuntary removal in proceedings, including expedited removal, reinstatement of removal, and proceedings under sections 362 or 365 of the Public Health Service Act.

This section establishes confidentiality requirements for the personal information and Office of Refugee Resettlement case files of unaccompanied noncitizen children. Disclosure is permitted only after the child consults with legal counsel and provides informed consent, and subsequent disclosure to third parties requires the same process; for children under 12 years of age, only a parent, legal guardian, or sponsor may provide consent.

This section prohibits the Director from sharing information about an unaccompanied noncitizen child in custody or prospective sponsors with the Attorney General or the Secretary of Homeland Security without consent of the child or sponsor and their legal counsel. It bars the Office of Refugee Resettlement from sharing any information with the Department of Homeland Security for immigration enforcement or with the Department of Homeland Security or Department of Justice for relief from removal, requires sponsor communications to explain the consent requirement, and permits limited disclosures for national security, law enforcement, benefits eligibility, and victim services with consent.

This section prohibits sharing information from counseling sessions with unaccompanied noncitizen children, including records and notes, with case management specialists or employees of the Office of Refugee Resettlement, the Department of Health and Human Services, the Department of Justice, or the Department of Homeland Security, except when the child presents a documented imminent threat or provides informed consent after consulting legal counsel. It also requires juvenile information, including records of children separated from family, to remain confidential and bars disclosure to federal officials without a court order.

This section establishes protections for information and data collected from sponsors or prospective sponsors of unaccompanied children. It limits disclosure to family reunification, sponsor placement, or congressional oversight; makes the data immune from legal process and inadmissible as evidence without consent; restricts HHS use to reunification under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008; and prohibits publication of identifiable information or examination by anyone outside sworn HHS employees.